New report endangers religious liberty, critics say

WASHINGTON — Religious liberty as Americans have known it throughout their history will suffer a critical setback if a new report by the country’s top civil rights panel is followed, say advocates for the First Amendment freedom.

The U.S. Commission on Civil Rights (USCCR) declared in its Sept. 7 report protections to ensure nondiscrimination “are of preeminent importance in American jurisprudence” and religious exemptions from safeguards for such classifications as sexual orientation and gender identity “significantly infringe upon” those civil rights guarantees.

USCCR Chairman Martin Castro added to the concerns of religious freedom advocates when he wrote in a statement included in the report, “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”

With such language, the commission and its chairman indicated the rights of lesbian, gay, bisexual and transgender (LGBT) people should prevail when they clash with the rights of Americans who have religious conscience objections.

The legal and legislative advances of the LGBT and same-sex marriage movements have prompted debate for at least the last decade on how the conflict between religious liberty and what has become known as sexual liberty should be resolved. The USCCR is now on record favoring sexual liberty.

Russell Moore, president of the Ethics & Religious Liberty Commission, called the USCCR language on religious freedom a “logical, moral and political disaster.”

“For this administration to argue that religious liberty is merely a euphemism for unlawful discrimination demonstrates how deeply entrenched our federal government is in a culture war mentality against religious dissidents,” said Moore in written comments.

“Freedom of conscience isn’t privilege or luxury: It is the first freedom, without which no other freedom can exist,” Moore said. “This hostile attitude toward tens of millions of law-abiding Americans is tragic, and my prayer is that it would quickly give way to a recognition that soul freedom is worth defending for all.”

The USCCR released its report — titled “Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties” — more than three years after it held a hearing on the legal clash. The 306-page report followed a March 2013 briefing involving legal experts on different sides of the issue.

In its findings, the commission endorsed briefing panelists’ statements in support of other findings undoubtedly of concern to religious freedom defenders, including:

“A doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply;

“Third parties, such as employees, should not be forced to live under the religious doctrines of their employers [unless the employer is allowed to impose such constraints by virtue of the ministerial exception];

“A basic [civil] right as important as the freedom to marry should not be subject to religious beliefs;

“Even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.”

In addition to its findings, the USCCR made recommendations narrowing religious liberty protections. It said courts, legislators and policy-makers “must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires.”

The commission also called for the federal government to consider clarifying that the Religious Freedom Restoration Act (RFRA) “creates First Amendment Free Exercise Clause rights only for individuals and religious institutions and only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination.” It also urged states to adopt similar amendment to their RFRA-like laws.

RFRA is a 1993 federal law that requires the government to have a compelling interest and use the narrowest possible means in burdening a person’s religious exercise. President Clinton signed it into law after a broad coalition of religious freedom advocates pushed for the measure in response to a heavily criticized Supreme Court decision and following nearly unanimous approval by Congress.

In his statement, Castro said, “Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others. However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality.”

If followed by the government, the USCCR’s findings and recommendations could severely restrict religious freedom and conscience protections for individuals, including employers, and institutions, including churches.

Two USCCR commissioners contributed statements to the report that disagreed with the majority.

One, Gail Heriot, said, “Religious liberty is sometimes referred to as our nation’s ‘First Freedom,’ because of its preeminent position in the text of the First Amendment and its importance in the founding of our nation.

“The Commission thus could just as easily — indeed more easily — have gone in the opposite direction of [its fifth finding]: Because religious liberty is our First Freedom, it is preeminent, and laws, including non-discrimination laws, that purport to coerce individuals into acting or prohibiting them from acting in ways that would violate their conscience ‘must be weighed carefully and defined narrowly.'”

Sen. Ben Sasse, R-Neb., objected to the report in a Sept. 15 floor speech in which he said the commission’s “profession of ‘Peaceful Coexistence’ must never quietly euthanize ‘religious liberty’ just because Washington lawyers and bureaucrats find it convenient and orderly to do so.”

“It must never be used to chip away at our most fundamental freedoms,” he said. “It must never undermine the essence of what it means to be human.”

Baltimore Archbishop William Lori, chairman of the U.S. Conference of Catholic Bishops’ religious liberty committee, said Castro’s comments “painting those who support religious freedom with the broad brush of bigotry are reckless and reveal a profound disregard for the religious foundations of his own work.”

“Rest assured, if people of faith continue to be marginalized, it is the poor and vulnerable, not the Chairman and his friends, who will suffer,” Lori said in a written statement.

The USCCR, established in 1957 as a nonpartisan entity, consists of eight members, four appointed by the president and four by Congress. The president names the chairman and vice chairman of the panel.